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Signed, Sealed & Sued

March 27, 2002 at 12:00 AM EST
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RAY SUAREZ: President Bush today said America’s newest law is, "a culmination of more than six years of debate." Despite what he considered flaws in the campaign finance bill, the president applauded the provision that lets individuals contribute more money directly to candidates, raising it from $1,000 to $2,000.

The bill also bans so-called soft money, unregulated contributions to national parties. The president commented on the bill just before raising millions of dollars for Republican Congressional candidates today. Mr. Bush spoke to reporters in Greeneville, South Carolina.

PRESIDENT GEORGE W. BUSH: It improves the system because it enables an individual to give more money, and what I want to do is have a system that encourages more individual participation as well as more disclosure. I’ve always been concerned about a system where money is given to entities and the stakeholders have no say, so I was concerned about shareholders of corporate America not having a say, as well as labor union members not having a say about how their money is being spent. This bill improves the system.

REPORTER: Mr. President, the objection you raised in the last week of debate on the bill is that it didn’t take effect immediately; the ban on soft money would not take effect until after the election. Do you find it ironic that given that that was your opposition, today, right after signing the bill, you’re out here campaigning?

PRESIDENT GEORGE W. BUSH: No. I’m not going to lay down my arms. I’m going to participate in the rules of the system. These Senate races are very important for me. I want the Republicans to take control of the Senate, and I want Denny Hastert to be the Speaker of the House. And these are the rules, and that’s why I am going to campaign for like-minded people.

RAY SUAREZ: Shortly after the president signed the bill into law, Republican Senator Mitch McConnell and the National Rifle Association filed separate suits in DC District Court challenging the legislation’s constitutionally. Other organizations are expected to file similar suits in the days to come.

For more now on the legal battles ahead we turn to Joshua Rosenkranz, President of the Brennan Center of Justice at New York University. The Brennan Center is a supporter of the new law — and Laura Murphy, director of the DC office of the American Civil Liberties Union. The ACLU is opposed to the legislation, but was not part of the suits filed today.

Laura Murphy, do you believe the campaign finance reform law is unconstitutional?

LAURA MURPHY: Absolutely.

RAY SUAREZ: Why?

LAURA MURPHY: Well, there are provisions in the bill which restrict issue group speech, groups like the ACLU, and the National Right to Life Committee, the NAACP, Planned Parenthood, other organizations, these provisions would prevent us from running issue ads during critical periods before primary and general elections, and they would prevent us from running ads, broadcast, satellite or cable ads in a way that we think violates our free speech rights.

RAY SUAREZ: Prevent you from running those ads or merely put new requirements in place for you to do so?

LAURA MURPHY: Well, basically we’d have to comply with the federal election laws that would require us to form virtual political action committees and the ACLU doesn’t want to get into partisan politics. We lobby on principle. We don’t want to have to set up a separate organization and register with the federal government, disclose anonymous contributions in order to speak about a candidate’s records.

We ran an ad recently in Illinois and it was about the Employment Nondiscrimination Act and it was run in Speaker Denny Hastert’s district. That ad just urged people to urge Speaker Hastert to bring the employment nondiscrimination bill to the House floor for a vote.

It was run at a time when people were paying attention to the candidate’s records, and we don’t care whether or not those people who vote for Hastert or vote against Hastert. We want the ability to express our position about a candidate’s record before, during and after election without complying with gag orders.

RAY SUAREZ: So you’re saying under the new rules you wouldn’t be able to run that ad?

LAURA MURPHY: Those ads would not be run by the ACLU because we use anonymous contributions, we use corporate contributions, we use all kinds of contributions to run our ads and we don’t feel we should have to comply with contribution limits, disclosure requirements, that sort of thing in order to express our opinion. And the "New York Times" can run an editorial and it’s a corporation. Anytime of the year talking about a candidate’s record but the ACLU and the National Rifle Association, Planned Parenthood, all these groups cannot and we don’t think that’s constitutional.

RAY SUAREZ: Joshua Rosenkranz, after what we just heard, can this bill withstand constitutional scrutiny?

JOSHUA ROSENKRANZ: Absolutely, Ray. I think you put your finger on the single most important aspect understand about the provision Laura is talking about, and then after addressing that, I want to broaden the debate just a bit.

But the most important thing to understand is that no one is banned from speech under this provision under this new law. No one is banned. The ACLU or anyone else can run their ads to their heart’s content so long as they follow election rules and that means raising the money only from individuals and telling us who you are when you’re trying to influence our vote.

Those are the two rules that govern all election related speech. Those are the rules that govern campaigns, candidates, political action committees, and individuals. And all the law does is to say, that if you want to try and influence elections right at the heart of the election you have got to follow those same rules. It’s a matter of fairness.

Now more broadly, Ray, the thing to understand, also, and the thing that the ACLU has challenged as well, is that the heart of this law is a soft money ban, a ban on those truckloads of six figure and seven-figure gifts that go directly to the candidates funneled through the political parties and the ACLU and Mitch McConnell are challenging that aspect of the bill, the aspect of the bill that says, stop that activity.

The activity that allows candidates to raise these enormous contributions to sell access by selling the Lincoln bedroom, by selling breakfasts with candidates, with heads of committees that have important business, that selling access to the people who have the business before Congress.

RAY SUAREZ: But I guess the question is: Can you have this law a la carte, are there parts of it that can be stripped out in court challenges but leave parts of it still intact or is there an all or nothing kind of deal when you go after a law that’s structured in this way?

JOSHUA ROSENKRANZ: The law that’s what’s called a receiverability provision, which only means that if the court strikes down any particular provision the rest will stand.

But the truth is this was a very carefully crafted bipartisan bill that was signed by the President that was carefully crafted to be as narrow as possible and to effect as little speech as possible. It’s a law that I think the courts will uphold in its entirety and the courts ought to uphold it.

RAY SUAREZ: What about the soft money ban, Laura?

LAURA MURPHY: Soft money is money that is not given directly to candidates and money given to parties serve a variety of purposes: Get out the vote efforts, platform development, that sort of thing.

And so the idea that all of the money that goes to parties is somehow corrupting our system I think really does a great disservice to what contributions to parties really do. What are parties but groups of like-minded people?

So in a sense parties are issue advocacy organizations, and, you know, Josh makes it sound so reasonable. We’re talking about a law that regulates political speech, the very kind of speech the first amendment was designed to protect and this kind of speech is more regulated as a result of this bill than draft card burning and nude dancing.

It is a nightmare for nonprofit organizations to walk the minefield of all of these new regulations that’s will come as a result of this bill. And criminal penalties fall as a result of these provisions of the bill. In other words, you can be prosecuted, sent to jail for up to five years if you don’t comply carefully with this law, so there are going to be many groups that choose not to speak. And this is just totally unconstitutional and goes against 25 years of Supreme Court doctrine.

RAY SUAREZ: But you heard Joshua Rosenkranz say no one will be preventing anyone from speaking, just asking…

LAURA MURPHY: That’s not accurate.

RAY SUAREZ: Asking them to use the same rules that other institutions use.

LAURA MURPHY: What this law does is says to groups like the ACLU you are either for or against Dennis Hastert and you have to declare just like anyone who would give a direct contribution, you have to report just like anyone who give a direct contribution to Dennis Hastert that isn’t the role of our organization so we would have to fundamentally changed our charter in order to say, please Mr. Hastert bring the Employment Nondiscrimination Act up to the House floor for a vote.

Why is that restriction justified? How are we corrupting the political process by engaging in robust political speech? They’ve not made the case.

RAY SUAREZ: Joshua Rosenkranz?

JOSHUA ROSENKRANZ: Well, first let me address Laura’s first point. It has been the case, Ray, since 1907 corporations are barred flat out barred from engaging in electioneering. That’s been the law that’s been reaffirmed by the Supreme Court in 1976 as recently as 1990.

LAURA MURPHY: But we’re not talking about electioneering.

JOSHUA ROSENKRANZ: And the soft money ban is about as close as you get a no-brainer in constitutional law. As to the ACLU’s ads, the fact, Ray, is the ACLU can decide whether it wants to run those ads close to an election or not, whether it wants to name candidates or not.

If there is something fundamental about the ACLU that makes them decide they don’t want to do that, that’s completely their choice. But the law does not ban them from doing it as long as they follow the same rules that everyone else follows. Tell us who you are, and don’t use corporate money.

The classic ad of this example, Ray, is the ad that was run in connection with the New York primaries just last election cycle. Here in New York we had millions of dollars dumped on our election right on the eve of the election advocating Governor George Bush’s environmental record in Texas.

We didn’t know who ran those ads. We didn’t know whether it was GE, we didn’t eve know whether they were New Yorkers or not. Lo and behold it turns out they were two brothers from Texas, buddies of George W. Bush’s who wanted to promote his campaign and all this law says, that if you want to run those ads you have got to tell us who you are.

RAY SUAREZ: Very quickly, your response.

LAURA MURPHY: Well the hypocrisy of the Brennan Center that accepts contributions from Coca-Cola, Enron, Jerome Kohlberg, the Pew Charitable Trust, millions and millions of dollars they accept in order get their message out, but they want to silence other group’s ability to get their message out and I just think we’re going to have to see each other in front of the Supreme Court and get the issue involved.

RAY SUAREZ: So the ACLU will be filing its own action?

LAURA MURPHY: We will be filing our own action in the near future.